Her Majesty the Queen - v. -, 2013 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 118 Date: July 31, 2013 Information: 32303286 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carrie Lynn Binetruy Appearing: Brian Hendrickson, Q.C. For the Crown Mervin Nidesh, Q.C. For the Accused DECISION ON VOIR DIRE M.

GORDON , J INTRODUCTION [ 1 ] The accused is charged that on or about the 9 th day of February A.D. 2012, at or near Moose Jaw, Saskatchewan did, having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code and count 2, on or about the 9 th day of February A.D. 2012, at or near Moose Jaw, Saskatchewan did, while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1)(

a) of the Criminal Code . The Crown proceeded summarily on both counts. By agreement between counsel a voir dire was entered into with the understanding that all admissible evidence heard on the voir

dire would be applied to the trial proper. [ 2 ] Defence counsel filed a written Charter notice alleging breaches of the accused’s rights pursuant to s. 8 , 9 , 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms . ISSUES [ 3 ] After considering the written Charter notice filed by the defence and the oral and written submissions of counsel, the issues that are to be determined are as follows:

(1) Did the police officers violate Ms. Binetruy’s rights under s. 8 , 9 and 10(

a) of the Charter when she was stopped and then placed in the back of the police vehicle?

(2) Was Ms. Binetruy’s right to counsel violated under s. 10(

b) of the Charter ?

(3) Was Ms. Binetruy’s rights under s. 9 of the Charter breached when she was not released at the conclusion of the breath tests? ANALYSIS [ 4 ] It is noted identity was admitted. The defence contended that the officer did not have a reasonable suspicion to make the ASD demand. If this argument succeeds, then it follows that the peace officer did not have grounds to make the Intoxilyzer demand under s. 254(3) and the accused’s Charter rights under s. 8 and 9 of the Charter have been breached.

The standard of reasonable suspicion to make an ASD demand is very low and quite different than the reasonable and probable grounds required for an Intoxilyzer demand. A reasonable suspicion means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. In order for Cst. Heck to make a lawful demand for an ASD sample, he must actually believe that the person who was operating the motor vehicle has alcohol in her body and this suspicion is rationally based upon the facts and circumstances as they existed prior to making the demand. In R. v.

Vermette , 1997 SKQB 5, Allbright J. stated: An officer must have a basis for suspecting that a person has alcohol in his body and the suspicion must be reasonable in all of the circumstances. [ 5 ] From the evidence at trial, I have concluded that Cst. Heck based his opinion on the following:

a) failure of Ms. Binetruy’s vehicle to come to a complete stop at the four way stop;

b) the admission upon being asked of consuming one drink on the way home;

c) glossy eyes;

d) took some time and fumbled when looking in her wallet for her licence;

e) Ms. Binetruy was slouched over the steering wheel and leaning to the right;

f) Ms. Binetruy avoided directly speaking to the officer but rather spoke over her left shoulder;

g) Ms. Binetruy spoke slowly answering questions;

h) there was a moderate smell of beverage alcohol on her breath; and

i) she stumbled and was uneasy on her feet when walking the short distance back to the police vehicle. [ 6 ] In R. v. Gunn , 2012 S.C.A. 80, there is a thorough discussion of this issue. Applying the principles in Gunn , I conclude that

any reasonable person in the place of the police officer would have suspected that Ms. Binetruy had alcohol in her body and therefore I find that the officer had grounds to make the ASD demand. Cst. Heck had ample reasons to conclude that Ms. Binetruy had alcohol in her body. His suspicion was reasonable based upon his observations that were readily apparent to him. [ 7 ] The next submission on behalf of the defence is that there was a breach of Ms. Binetruy’s rights under s. 10(

a) of the Charter . This

section reads as follows: Every one has the right on arrest or detention (

a) to be informed promptly of the reasons therefore. [ 8 ] Cst. Heck requested Ms. Binetruy exit her vehicle and walk to the police vehicle which was about a car length away. She complied and once in the police vehicle Cst. Heck read her the formal ASD demand from a card. The peace officer is not required to administer the ASD test while the detainee remains seated in her vehicle. There is no problem with the police officer asking her to accompany him to the police vehicle if it is done forthwith. There is no evidence to suggest that Ms. Binetruy did not know why she was being asked to go to the police vehicle.

In fact, Cst. Heck had requested the ASD machine when he was standing at the open car window. There was no confusion or reluctance on the part of Ms. Binetruy. It is reasonable to infer that she knew the purpose of the investigation. This is far different than situations where a person is detained in the back seat of a locked police vehicle for several minutes without being given any information as was the situation in R. v. Birnie , 2013 SKPC 50 .

In any event, there was no incriminating evidence obtained in this brief time period. [ 9 ] At this point I want to deal with the two sub-arguments raised by the defence. I will deal first with the defence submission that Cst. Heck did not make sufficient notes or detailed notes of the important points at the time of the incident and investigation. [ 10 ] The defence states that Cst. Heck did not record any notes until just after he read the ASD demand. He recorded the grounds for the ASD when he returned to the police station.

He first observed the vehicle at 22:40, stopped the vehicle, spoke with the driver, made observations, requested the driver to come to the police vehicle, read the ASD demand at 22:47 and administered the test at 22:53. Ms. Binetruy was subsequently arrested as a result of the fail recording on the ASD and given her rights to counsel at 22:55 and police warning. They returned to the police station at 23:09. [ 11 ] While I recognize that proper note taking is a good habit and to be recommended, the nature and extent of one’s notes will vary.

For example, some people are detailed note takers but others are not as they are able to recall matters without extensive notes. I did not find anything in Cst. Heck’s evidence that would cause me to have concern about the reliability of his evidence. He provided sufficient detail and gave his evidence clearly and in a straightforward manner. [ 12 ] The final sub-issue is that the Crown has not proven beyond a reasonable doubt that the ASD instrument used meets the requirements as specified in the Criminal Code and the regulations. Cst. Heck testified that Cst. Crane brought him an ASD machine.

He recorded the serial number of the instrument and when it was last checked to ensure that it was within the time frame allowed. Cst. Heck did not record any other details such as the make and model of the machine. Cst. Heck testified he received his training on administering ASD tests in 2009 and is current in his certification. [ 13 ] The defence argued that as a result of the Crown not proving beyond a reasonable doubt that the instrument was an approved instrument, therefore the ASD demand and results and the subsequent Intoxilyzer demand and results should be inadmissible. In R. v.

Helm , 2011 SKQB 32 , the Court of Appeal had this to say about the issue at para. 24: It is an error in law to hold that the use of a shorthand description of the device employed, in the absence of any other evidence that the device was not approved, means that the device was not approved and cannot be used as the basis for the officer’ s requisite reasonable and probable grounds. This amounts to applying the wrong legal approach to the proof of the charge that was before him. The court is entitled to draw reasonable inferences from all of the facts.

The officer referred to the device as an “ ASD ” , which, in all of the circumstances, could only mean that she used that term as an abbreviation for an “ approved roadside device ” . Furthermore, the fact that the officer described the machine as an “ Alcotest 7410 ” , rather than using the full trade name used in the regulations, such as the

“Alcotest ® 7410 PA3” or “Alcotest ® 7410 GLC”, is of no legal consequence. To hold that the officer must use terminology thatprecisely matches the gazetted regulations is an error in approach that amounts to an error in law. See R. v.

MacLeod, 2009 YKCA 5, 79 M.V.R. (5th) 171, where in similar circumstances, the Yukon Court of Appeal held that a trial judge’s finding that the screening deviceused must precisely match the devices listed in the regulations is an error in law. [14] There are many cases on this point at all levels of courts in Saskatchewan and elsewhere which consistently hold that the trialjudge is entitled to draw reasonable inferences from the evidence.

Therefore I conclude that it is not reasonable to infer or conclude thatan officer who requested an ASD machine, testified he was brought an ASD, recorded the serial number and checked the date, in factused an unapproved instrument. This case is distinguishable from R. v. Boyko (1997), (SK KB), 154 Sask. R. 173(Q.B.) in which the Crown conceded that the device was not an approved screening device. In R. v. Claypool, 2003 SKPC 116, JudgeMatsalla deals with a similar issue at paragraph 17: I find that there is sufficient proof that the device was an approved device and I do so after noting the following;

a) the officer received training in the operation of the Alcotest,

b) he requested the accused to supply a breath sample into an approved instrument,

c) he described the instrument as an approved instrument, and

d) his description of the instrument was, in essence, consistent with instruments described in the Approved Screening Devices Order asan Alcotest and as a Model 7410 - of which there are two, a PA3 and a GLC. In either case, the device is approved. This is not a case of misdescription but rather a case of a somewhat abbreviated description with the addition to the description of whatappears to be a proper name. [15] The next main issue is whether there was a breach of Ms. Binetruy’s rights to counsel under s. 10(

b) of the Charter whichreads: Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. [16] It is clear from the case law such as R. v. Bartle (1994), (SCC), 3 S.C.R. 173 and R. v. Brydges (1990), (SCC), 1 S.C.R. 190, that the police must meet three obligations after detaining a person without delay.

These are asfollows: 1) To inform the detainee of the right to counsel including the availability of free 24 hour duty counsel or Legal Aid. 2) To provide the detainee with a reasonable opportunity to exercise that right (except in dangerous circumstances). 3) To refrain from eliciting evidence from the detainee if he or she invokes the right. [17] Ms. Binetruy indicated she wanted to call counsel and asked for the numbers while she was still in the police vehicle and thenshe said “oh that’s okay, I’m safe now”.

Once back at the detachment, the officer testified that the police, at her request, called each ofthe lawyers at the Chow McLeod Law Office, starting at 23:25. The officer also had the numbers for each of the lawyers and messageswere left at most if not all of the numbers. Brenda Walper-Bossence, another Moose Jaw lawyer, was also called at 23:33 at the requestof Ms. Binetruy. At 23:36, the officer testified that Ms. Binetruy asked to call Legal Aid and then changed her mind and asked for BrockCraik, a retired Moose Jaw lawyer. However, she did talk to Legal Aid’s John Hardy at 23:37 until 23:44. Ms.

Binetruy was in the“phone booth” room and had complete privacy. At the conclusion of this call to Legal Aid, she was asked if she wanted to speak toBrock Craik and she replied “no, that’s probably good”. The defence relies on cases such as R. v. Epp, 2010 SKPC 89, in which JudgeWhelan states that when the police control the telephone, they are obligated to do as good as the detainee would. Otherwise there is aviolation of s. 10(

b) rights and the Certificate of Analyses should be excluded. In the Epp case, Judge Whelan undertakes an exhaustivereview of the authorities. She acknowledges that these cases are often very fact specific but notes the cases are instructive as to theCourt’s

interpretation of s. 10(b). In R. v. Bartle, supra, the Court discussed the right to counsel and the importance of the accusedreceiving full information to make an informed choice. This is crucial given the disadvantageous position of the person in custody. InR. v. Luong (2000), 2000 ABCA 301 , 149 C.C.C. (3d) 571, cited with approval in R. v. Eashappie, 2009 S.C.A. 5, the AlbertaCourt of Appeal offers guidance on this issue. The Crown points to the decisions of R. v. Komarnicki, 2011 SKPC 123 and R. v.Menkerios, 2011 SKQB 128, to support its contention that the accused must exercise diligence when exercising her right to counsel. The

accused bears the burden of proof to establish on the balance of probabilities a Charter breach. Various courts in Saskatchewan haveheld that in certain circumstances even with the police making the calls, the implementational aspects of s. 10(

b) can be satisfied (see R.v. Willier, 2010 SCC 37 , 2010 S.C.C. 37). The police provided different phone numbers for each lawyer called from the Chowfirm. The numbers are very different from each other. The officer testified the numbers were taken from the Moose Jaw phone book. Itis not unreasonable to conclude that these were home numbers of the individual lawyers which would be the appropriate number to callat that time of the night. Ms. Binetruy did in fact ask to talk to Legal Aid and spoke to Mr. Hardy for approximately seven minutes.

Shewas then asked specifically by the officer if she wanted to speak with Brock Craik. Her reply was “no”. I have no other evidence toindicate she wanted to talk to someone else or that she was unsatisfied with the legal advice. The police had complied with each of herrequests. There was no indication in the evidence before me that she was being rushed. Therefore, I conclude she was given her right tocounsel and she in fact exercised this right.

There was no breach. [18] The final issue advanced by the defence is commonly referred to as “over holding”, being a breach of the accused’s rightsunder s. 9 of the Charter.

Section 9 of the Charter of Rights and Freedoms reads as follows: Everyone has the right not to be arbitrarily detained or imprisoned. [19] Section 497(1) of the Criminal Code entitled “Release from Custody by a Peace Officer” reads as follows:

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (

b) or (c),the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them.

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [20] Cst. Heck testified that at 12:55 a.m., the breath tests were concluded. At 1:10, the accused’s husband was contacted and toldthat his wife would be released once she had “sobered up”. At 5:00 a.m., Cst. Heck served Ms. Binetruy with a Certificate of Analyses(P-1) and a Notice of Intention. He then gave her a ride home. Cst. Heck admits there were no problems dealing with Ms. Binetruy. Her condition remained about the same throughout.

She was emotional, crying at times, had a dizzy spell and advised she recently had amiscarriage and was currently bleeding. Cst. Heck testified the main reason for keeping her was her readings were high and he did notthink it was appropriate to serve the documents on her until she had sobered up. Defence counsel suggests that there was no indicationthat Ms. Binetruy was in a state that she could not be released. Counsel points to the video of Ms. Binetruy that shows she is functioningsatisfactorily in the circumstances. [21] In my view, there has been a breach of Ms. Binetruy’s rights under s. 9 of the Charter.

There is no indication that Ms.Binetruy was anything but cooperative throughout. She was emotional at the outset and this state continued to some degree until herrelease. While her state of mind was of concern to the police officer, I conclude that his main reason for not releasing her was tofacilitate service of the documents. I find that the explanation of her high readings to be an afterthought. Ms. Binetruy was able torequest that various counsel be called and to make other requests to the officer without difficulty. I observed Ms. Binetruy on the video.

She understood the directions of the technician and provided satisfactory samples. Given Ms. Binetruy’s recent miscarriage andcontinued bleeding that evening, I would think the officer would have wanted to get her home as soon as possible especially when hewas aware that her husband was at home. The officer noted that the husband did not offer to come and pick up his wife, however I notethat the officer told Mr. Binetruy that his wife was going to be kept in cells. In the end, Cst. Heck did give Ms. Binetruy a ride home. There is nothing in law that requires these documents to be served immediately.

It certainly makes it easier and more efficient for the

officer but the documents could have been served the next day or next week. This is not good practice and it is not acceptable for the police to hold a person for that reason only. [ 22 ] Therefore since I have found a breach, what is the appropriate remedy? The Crown contends that if there is a Charter violation for over holding, that the case law is clear and neither a stay of proceedings or exclusion of the evidence are the proper remedies. The breach occurred subsequent to the evidence being obtained. The defence urges this Court to follow the approach in R. v.

Weaver , 2005 ABCA 105 , and exclude the Certificate of Analyses. In that case a new trial was ordered and the judicial stay set aside by the Court of Appeal. The leading case in Saskatchewan is of course R. v. Salisbury , 2012 SKCA 32 . In Salisbury , the trial judge had directed the charges of operating a motor vehicle while impaired and with having a blood alcohol level exceeding .08 be stayed on the basis the accused was arbitrarily detained in breach of s. 9 . The Court of Queen’s Bench allowed the Crown’s appeal. Mr.

Justice Gerein found that the remedy of a stay of proceedings was disproportionate to the Charter violation. The Court of Appeal commented that there is no question that a stay of proceedings is a remedy to be used only in the clearest of cases. The Court of Appeal after discussing procedural issues upheld the Court of Queen’s Bench decision. In Salisbury , the accused was detained nine and a half hours after blowing .18. It was a very cold morning (minus 47 degrees Celsius with the wind chill) and the accused gave a rural address. The accused fell asleep in cells and did not awaken until sometime after 8:00 a.m.

Mr. Justice Gerein is quite clear in Salisbury (upheld on appeal) at paragraph 11 which reads as follows: With respect I hold the opinion that the cases cited do not correctly set out the law as it exits in this jurisdiction and as it should be applied in the instant case. It is accepted that there was a breach of s. 9 of the Charter . However, it occurred after the commission of the offences and after the investigation had been completed. There was no connection between the breach and the charges. That being so, the remedy in this case was disproportionate to the violation of the Charter .

That is not to say there should be no remedy. Only that the remedy should be different. [ 23 ] I do not think this is the clearest of cases as contemplated by the cases where a stay of proceedings is appropriate under s. 24(1). As I have mentioned I am somewhat sceptical of Cst. Heck’s reasons that he relied on her high readings and her emotional state. She was released four hours later and driven home by the same officer. This case is distinguishable from cases such as R. v. Fox , 2007 SKPC 61 , where Judge O’Hanlon ordered a stay of proceedings.

In the Fox case, the trial judge found that the Big River Detachment still lacked an appreciation of the responsibilities in the application of the Criminal Code to the release of individuals. At paragraph 8, Judge O’Hanlon said in the within case the accused was imprisoned over 11 hours. He was a local resident, he was cooperative. His wife came to pick him up and was sober. Given that the accused had no criminal record and there was nothing in the circumstances to justify anything more than the minimum fine, Judge O’Hanlon found that a stay was the only appropriate and just remedy.

That case is far different than the circumstances here which I have previously outlined. [ 24 ] There is a less drastic remedy available such as reduction of the fine upon a finding of guilt. This would be proportionate to the breach in this case. This is the approach taken by other members of the Court such as in the case of R. v. Larose , 2012 SKPC 153 , where Judge Green states at paragraph 39: It is a case where I will reserve the possibility of a reduction of sentence (see Hall , at para. 41).

That of course will depend on any evidence - whether criminal record or notice of greater punishment or otherwise - or any submission of counsel, during sentencing. I am not, however, satisfied that it would be appropriate to reduce Mr. Larose’s sentence below the statutory minimums, having read and considered R. v. Ferguson , 2008 SCC 6 and R. v. Nasogaluak, 2010 SCC 6 .

In particular, I do not find the behaviour of the police in this case to represent an “egregious form of misconduct by state agents” so as to justify a reduction of sentence below the statutory minimums for these offences (see Nasogaluak at para. 64 ). [ 25 ] In R. v. Sherstobitoff (No. 2) , 2013 SKPC 77 , Judge Labach deals with this issue. He reviews the authorities and concludes at paragraph 67 as follows: In this case, the breach of the accused’s

section 9 Charter right occurred after his drinking and driving investigation was complete and charges had been laid. There was no connection between the breach by overholding and the obtaining of evidence. While it was not acceptable that the accused was held this long, it did not impact the fairness of the trial. As such, this is not the clearest of cases in which to order a stay of proceedings. The accused however is entitled to a remedy. In my view, an appropriate remedy in these circumstances is a reduction in sentence.

This reasoning is consistent with the decision of my brother, Judge Hinds in the case of R. v. By , [2013] S.J. No. 347 (Sask. Prov. Ct.) wherein he was faced with a similar situation.

CONCLUSION [ 26 ] Therefore I am satisfied on the evidence that the accused’s s. 9 Charter right was violated by a decision to hold the accused in custody for approximately four hours. Pursuant to s. 24(1) of the Charter , if there is a conviction a reduction in sentence would adequately reflect the seriousness of the breach. The Certificate of Analyses will be admitted into evidence at the trial proper. M. Gordon, J